Editorial: IRS stonewalling makes the case for a special prosecutor

The Fifth — and First — Amendments

May 23, 2013

"If you refuse to answer, you will leave us no choice but to ask for a special counsel or the appointment of a special prosecutor to get to the bottom of this. I hope that's not the approach of the IRS going forward, because there will be hell to pay."

— U.S. Rep. Stephen Lynch, D-Mass., to IRS officials appearing Wednesday before a House investigative committee.

"I have not done anything wrong. ... I will not answer any questions or testify about the subject matter."

— Lois Lerner, director of the IRS's tax-exempt organizations division, invoking her Fifth Amendment right not to testify to that committee.

With their stonewalling, claimed ignorance and convenient amnesia, Internal Revenue Service officials make it difficult for Americans to comprehend the depth, but also the official awareness, of their agency's evident assault on free speech. IRS targeting of conservative groups for extraordinary scrutiny, intrusive demands for information from them, and long delays in processing their paperwork, served two ends, unwittingly or by intent: to thwart the groups' fundraising by delaying their tax-exempt status, and to intimidate them from exercising their First Amendment rights.

Who put this sorry operation in motion? Was the IRS merely looking for ways to cope with more applications for its valuable tax-exempt imprimatur than its staff could process? Or was someone pushing the agency to hassle groups unfriendly to the government — or to the incumbent Democratic administration — as a presidential election approached?

Asking these questions isn't a coy suggestion that we have answers. We do, though, know that truthful responses from Lois Lerner, head since 2006 of the IRS office that doles out tax-exempt status to nonprofit groups, could get all of us much closer to those answers. Same for Douglas Shulman and Steven Miller, past IRS commissioners who, unlike Lerner, haven't invoked a Fifth Amendment right against self-incrimination. Shulman and Miller are testifying. But they just didn't know much, just can't remember much, about their agency's targeting operation.

Add to this the White House's evolving story of who knew what, when, about illicit IRS activity and you reach this scandal's two bedrock issues. One is the origin and extent of the targeting. The other is how high in the Obama administration knowledge of this operation reached before voters cast their ballots for the Nov. 6 election. On Friday the IRS inspector general testified that in June 2012, five months before the election, he told top Treasury Department officials of his probe into the targeting. Maybe the word stopped there. Certainly, nobody clued in rank-and-file citizens about IRS treatment of conservative groups that might have influenced their votes.

The context: Tea party and other conservative groups had assisted a Republican victory wave in the 2010 congressional election. Democrats understandably feared a repeat in 2012. That concern likely animated Democratic senators who, during the 2012 cycle, urged the IRS to examine the tax-exempt status of these groups, some of which had huge war chests. The White House, too, complained about big-money conservative groups.

At the same time, the IRS was assuring noisy Republican members of Congress that, contrary to complaints from the conservative groups, the agency wasn't subjecting them to inordinate scrutiny. That assurance was incorrect. Worse, even when they learned about the targeting, neither Shulman nor Miller corrected their previous denials to the Congress. Sen. Orrin Hatch (R-Utah) said at a Tuesday hearing: "Commissioner Miller, that's a lie by omission. ... Why did you mislead me and my colleagues?" To which Miller replied, "I did not lie, Sir."

The U.S. Department of Justice has opened a criminal investigation of the targeting, and of whether IRS officials misled members of Congress who asked about it. But given the political overtones, many Americans won't be much interested in what one arm of the Obama administration concludes about the conduct of other arms — the IRS, the Treasury and possibly the White House.

The evasiveness of IRS officials makes the case for a special prosecutor to conduct this inquiry, much as then-U.S. Attorney Patrick Fitzgerald investigated (and convicted of perjury and other offenses) Vice President Dick Cheney's chief of staff, I. Lewis "Scooter" Libby. Given the gravity of this scandal and the we-saw-nothing attitude that IRS officials project, Attorney General Eric Holder should appoint a prosecutor, aka special counsel.

We've been skeptical of special prosecutors who succumbed to temptations of mission creep and vague deadlines. But there are times when only a special prosecutor has the independence and credibility to resolve a politically fraught matter. That was Fitzgerald's greatest success in the Libby case.

With each day, the IRS fiasco only grows curiouser — as do the American people.

We don't begrudge Lerner her privilege under the Fifth Amendment.

We're equally concerned, though, about groups eager to invoke their First Amendment privilege — only to have their federal government push back.